The Reliability of Expert Evidence: Reflections on the Law Commission's Proposals for Reform

Abstract

The problems associated with the use of expert evidence by the criminal courts have been the subject of ongoing controversy. The Law Commission of England and Wales has recently added its voice to the debate with the publication of a Consultation Paper on the admissibility of expert evidence. This article examines the current law governing the reliability of expert evidence. It analyses the Law Commission's recommendation for the creation of a new statutory rule which would require the trial judge to assess evidentiary reliability as a matter of admissibility. The authors chart the emergence of the US Daubert test, on which the recommendation is based, and consider the lessons to be learned from American experience. While welcoming the recommendation in principle, the authors argue that the crafting and implementation of the proposed admissibility requirement would present formidable challenges.